Director of Public Prosecutions v Ring

[2020] VCC 1079

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE

CRIMINAL DIVISION

Revised              Not Restricted  Suitable for Publication

Case No. CR-20-00673

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOSHUA RING

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JUDGE:	HER HONOUR JUDGE LEWITAN
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2020
DATE OF SENTENCE:	29 July 2020
CASE MAY BE CITED AS:	DPP v Ring
MEDIUM NEUTRAL CITATION:	[2020] VCC 1079

REASONS FOR SENTENCE

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Subject:  Armed Robbery

Cases Cited:            Glen Brown (aka James Davis) v The Queen  [2020} VSCA 60;  Bugmy

(2013) 249 CLR 571; Walker v The Queen; Dragan v The Queen [2019]

VSCA 137;

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Duckett	Jill Goddard Solicitor for Prosecutions
For the Accused	Mr R. Lawrence	Simon O’Halloran Dribbin and Brown Criminal Lawyers

COUNTY COURT OF VICTORIA

250 William Street, Melbourne 219053

HER HONOUR:

1Joshua Ring, you have pleaded guilty before me to one charge of armed robbery. The maximum penalty for this offence is 25 years imprisonment.

2On Friday 31 January 2020 at 11.20am you rode a black bicycle to a 7-Eleven convenience store at 3/67 Separation Street, Geelong North in the State of Victoria (the 7-Eleven store). You left the bicycle outside the 7-11 store at 11.23am and walked into the 7-Eleven store, approaching the complainant and owner of the store (Navdeep Purba), at the front counter.

3You lifted your T-shirt and produced a 15cm to 30 cm silver bladed knife from your shorts and brandished it towards the complainant. You moved forward aggressively and told the complainant to “give me all your money”.1 The complainant immediately took a few steps back and raised his hands in fear.

4The complainant told you that he had to press a button on the screen to open the till and you told him, “OK keep going”. The complainant opened the till and placed the cash drawer from it on the counter. You reached through the safety wire taking approximately $200. You then left the store through the front door and ran towards Thompson Road, Geelong North. The complainant hit the duress alarm and called triple “000”.

5There were two other customers in the 7-Eleven store at the time of the offending. One of those customers was Keir Scott who approached the complainant and asked the complainant if he was “ok”. The complainant responded that he was. The other customer seemed unaffected by what had occurred, finished getting his slurpee and left after paying for it.

6At 2.08pm police arrived at the 7-Eleven store. CCTV footage was obtained. After a review of the evidence collected, you were identified as the person who

1 Exhibit B, DVD taken at the 7 Eleven store.

committed the armed robbery.

7You were arrested on 5 February 2020 and a record of interview was conducted. You told the police that you took the money to feed your drug habit. You said that you did not intend to hurt anyone. You said that you were addicted to heroin and could not buy drugs “on tick” as no-one would give it to you so you committed the armed robbery and used the money to buy drugs. You said that you are sorry it happened, that drug addiction is not an easy thing to deal with, that you are remorseful and sorry for the people at the 7-Eleven store.

8The facts in this case are very serious. The offence was committed upon a soft and vulnerable target. The defence conceded that the offending is aggravated because it was committed whilst you were subject to a Community Correction Order.

9The victims of your crime have suffered considerably. In a victim impact statement filed by the complainant, he states that he does not feel safe working in the 7-Eleven store, has trouble sleeping and is depressed.2 The complainant is considering selling the 7-eleven store. Kier Scott, a customer in the 7-Eleven store at the time of the armed robbery, also filed a victim impact statement. He said that your crime has had an unsettling and profound impact on him.3 I accept that the victims suffered in the manner described in their statements as a result of your actions.

10As has been pointed out by your counsel, there are however some mitigating factors. You have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. The community has, by your plea, been spared the time and cost of a trial. Witnesses have been spared the ordeal of giving evidence upon your trial. Further, I take it into account in your favour that you intimated your intention to plead guilty to this charge at the earliest

2  Exhibit C.

3  Exhibit D.

opportunity. In Director of Public Prosecutions v Bourke4 Dixon J referred to the substantial utilitarian value of pleas of guilty at the present time given the impact of the COVID-19 virus on the conduct of jury trials in Victoria. You told the police that you were, “sorry it happened” and expressed your regret for the people at the 7-Eleven store. In the circumstances I am satisfied that you are remorseful for your offending and accept that your plea indicates remorse for your actions.

11I have been told something of your personal history and your circumstances. You were born on 12 October 1987 and are 32 years old. You have come from a background of great disadvantage.

12You and your twin sister were born in Lithgow, New South Wales to parents Karen Ring and Richard Forgham. Your father was an indigenous man. Your parents separated when you were two. You remained in your mother’s care and had no contact with your father. You did not know your father until you were 24 years old.

13You started primary school in 1993. You were diagnosed with Attention Deficit Hyperactivity Disorder in your early school years and were prescribed medication. Your mother re-partnered with Steven Ring. Your stepfather drank frequently and in excess. You suffered emotional and physical abuse from your stepfather and occasions of sexual abuse. Police attended the family home numerous times due to your step-father’s violence, which was directed to all members of the family.

14You found things difficult at school socially. You began secondary school at La Salle Academy in 2000. You gained little benefit from your schooling, struggling academically and experiencing ostracization and bullying from peers, often leading to physical retaliation. You developed a reputation for fighting at school as you reached your teenage years and were considered a loner, having

4 [2020] VSC 130, [32].

established no significant friendships.

15You began drinking alcohol and smoking cannabis in your early and mid-teens. You were a heavy drinker until your mid 20s and believe that you used alcohol to assist in coping with the abuse perpetrated by your step-father and the associated difficulty that brought.

16You left La Salle Academy part way through Year 11 and began working at McDonalds. You left McDonalds in your 20s and have since had a limited employment history. You have done short-term labouring work with your last employment five or six years ago.

17You left home in 2011 and moved to Bathurst. After leaving home you used amphetamine, ice and later heroin. In 2012 your father reconnected with you and your sister.

18In 2013 you moved to Victoria, living in the Geelong area. You commenced a relationship with Tracey Clarke. You were sentenced to one years imprisonment for offending in relation to Tracey Clarke. After you were released, you moved to Sale to live with your father who was unwell with heart disease. Your father later passed away from emphysema at the age of 52. You were an inpatient at Latrobe hospital following your father’s death.

19In 2016 you moved to the Dandenong area and your drug use increased significantly. In 2017 you were sentenced at Dandenong Magistrates Court to an 18 month community correction order for drug related dishonesty offending and family violence.

20In 2018 you moved to the Flemington area. Initially you did well on the community correction order but you then moved to Shepparton and stopped complying with the order. You returned to Melbourne and reconnected with Corrections. You moved to the Geelong area and commenced a relationship with Belinda Ellis. On 23 January 2019, you were sentenced for breaching the

Community Correction Order for non-compliance. The Community Correction Order was varied to run for a further 8 months.

21In May 2019 you were dealt with in the Geelong Magistrates Court for a number of offences including breach of the community correction order and further offences relating to Belinda Ellis which included a threat to inflict serious injury and unlawful assault. You were convicted and sentenced to an aggregate term of imprisonment of eight months and a Community Correction Order for 18 months was also imposed in relation to the further offences. You were released from custody in November 2019. The offending occurred whilst you were the subject of a community correction order.

22When you were released from custody you were placed in crisis accommodation before you moved in with your ex-partner's family. Drug use was not uncommon in that household. In that context your drug use recommenced. Despite relapse, you attempted to comply with the Community Correction Order and kept appointments at the Wathaurong Aboriginal Co- operative.5 You attended six out of 10 supervision appointments between November 2019 and February 2020. You attended four drug treatment sessions between December 2019 and January 2020.

23You had been using heroin following your release from custody in 2019 and have developed an addiction. The offending in this case was committed to obtain money for the purchase of drugs and to repay a debt to your housemate.

24You have had periods of abstinence from drugs in the community, typically following release from custody, but you eventually relapsed. During your most recent release you had engaged with Barwon Health for drug and alcohol counselling and you had also received support from the Yarrwal Ngunjina program run by the Wathaurong Aboriginal Co-Operative. You experienced a number of overdoses, with one resulting in lengthy unconsciousness and

5 Exhibit 1.

hospitalisation in February 2020.

25You are presently held at Hopkins Correctional Centre (Hopkins), having been transferred from Ravenhall due to concerns for your safety and following an incident of self-harm. You were the target of standover tactics by other inmates. Whilst at Hopkins, you have taken advantage of the programs available to you. You are presently attending drug and alcohol counselling sessions and have engaged in a one on one program aimed at assisting with managing your mental health. You are prescribed Sertraline following diagnosis of depression and anxiety and also methadone to manage your opiate dependency.

26You have not received visits in custody and are unlikely to do so over the course of your sentence. You are not in contact with your mother or sister. You have had telephone contact with two friends, including Courtney Clifford, but they live interstate.

27A prison officer at another prison tested positive to the Coronavirus and one of the prisoners with whom he had close contacts has since been transferred to Hopkins. In Glen Brown (aka James Davis) v The Queen6 the Court of Appeal (Priest and Weinberg JJA) accepted that the COVID-19 pandemic is “causing additional stress and concern for prisoners and their families”. It is a matter I take into account in your favour in mitigation of sentence.

28I accept your counsel’s submission that your background of deprivation is relevant to and explanatory of your early addiction to alcohol and other substances and consequently relevant to the Court’s assessment of your moral culpability. The prosecution referred to the following restatement of the principles in Bugmy by the Court of Appeal in Walker v The Queen; Dargan v The Queen7 :

…his Honour correctly accepted that the principles, stated by the High Court in Bugmy, were relevant to the evaluation of Dargan’s subjective culpability for the offending in the case. As mentioned, Dargan’s

6 [2020] VSCA 60, [48].

7 [2019] VSCA 137, [74] per Whelan, Kyrou and Kaye JJA.

traumatic and turbulent upbringing, and his confusion concerning his Koori identity arising from the overt racism of his father, were directly relevant to a proper assessment of his subjective culpability for the offending in the present case. In essence, the offending was not committed by a person who had had the advantage of a stable and secure upbringing guided by proper parenting. Dargan’s attitudes to society, and his anti-social conduct, were necessarily the product of the manner in which he had been raised in his formative years. While those considerations do not excuse his offending, nevertheless, as the judge correctly acknowledged, they were relevant to a fair evaluation of Dargan’s moral culpability. Necessarily, Dargan’s capability was at a lower level than if he had had the advantage of a proper and stable upbringing, without being subjected to the dysfunction and violence that he had suffered during his formative years.

29The prosecution conceded that the principles stated by the High Court in Bugmy8 were relevant to the evaluation of your moral culpability for the offending in this case.

30Your offending is at the lower end for offences of armed robbery. I accept your counsel’s submission that it lacked “any degree of sophistication and does not suggest significant planning.” You committed the offence at your local convenience store and made no effort to disguise yourself. The duration of the offence appears to have been short.

31You have admitted before me to prior convictions. There are 70 such convictions, involving four court appearances between 2014 and 2019. The nature of some of those prior convictions, in particular the convictions for burglary and theft are such that they are highly relevant to my task of sentencing you today. Your counsel submitted that whilst you have a criminal history, you have no prior convictions for robbery or armed robbery.

32I take into account the letter forwarded by Sandra Manning, Local Justice Worker at the Wathaurong Aboriginal Co-operative. Your counsel submitted that your remorse for your offending combined with your past and current efforts at addressing your drug and mental health issues mean that your prospects for rehabilitation are fair, but will obviously depend on your success or otherwise with abstinence on release. In my view the prospects of your rehabilitation

8 (2013) 249 CLR 571.

remain guarded and will depend on your ability to abstain from the use of drugs and your willingness to engage with counselling and other organisations in the community such as the Wathaurong Aboriginal Cooperative after you are released from custody.

33As well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re- offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose a just punishment.

34The prosecution submitted that a straight term of imprisonment with a parole period was appropriate. Your counsel conceded that a sentence of immediate imprisonment must be imposed.

35This is without doubt a serious offence. In all the circumstances I have no alternative to the imposition of a custodial sentence. On the charge of armed robbery you are convicted and sentenced to a term of imprisonment of two years. I direct that you serve a minimum term of 16 months before being eligible for release on parole.

36I order that the property referred to in the schedule of the disposal order (the property) which I have signed this day be forfeited to the Minister. I further direct that     the     property     be     placed     in     the     custody     of     the    Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings and then destroyed.

37As prescribed by s.18(4) of the Sentencing Act 1991, I declare that the period of time you have already spent in custody is 168 days. I direct that such be noted in the records of the court. Is that correct - 168 days?

38MR LAWRENCE: Your Honour, that the period in custody at the time of the plea. My reckoning is that Mr Ring has now spent 175 days in custody

39MS DUCKETT: I concur with Mr Lawrence on that Your Honour, so there is 175 days.

40HER HONOUR: I declare that the period of time you have already spent in custody is 175 days. I direct that such be noted in the records of the court.

41Section 6AAA of the Sentencing Act 1991 requires me to state the sentence and non-parole period that I would have imposed but for your plea of guilty. Your plea has saved time, expense and the need for witnesses to give evidence, and is reflective of remorse. But for your plea of guilty, I would have sentenced you to a term of imprisonment of three years. I would have directed that you serve a period of two years before being eligible for parole.

42Pursuant to s.464ZF of the Crimes Act 1958, I make an order pursuant to s.464ZF that the forensic sample obtained from you be retained. Are there any further matters?

43MR LAWRENCE: No, Your Honour.

44MS DUCKETT: No, Your Honour.

45HER HONOUR: Yes, thank you. Would you please take Mr Ring into custody, to remain in custody, thank you, while I terminate the hearing at this stage. Thank you.

46MS DUCKETT: If the court pleases.

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